Wright v. Beeson

I dissent, however, from the affirmance of the judgment and order in Wright v. Beeson. The opinion of the majority proceeds upon the theory that the agreement of June 12th was executed with respect to the twenty shares and the nineteen-hundred-dollar note, and constituted a valid oral modification of the original writing, under section 1698 of the Civil Code. I shall not stop to discuss the appellant's argument to the effect that, even if the parties had, from the outset, been dealing with the twenty shares alone, the occurrences of June 12th would not have been sufficient to operate as a valid modification of a written agreement. Assuming their sufficiency to that end they could be given effect only by treating the sale of the twenty shares as severable from the remainder of the contract. This cannot be done without making for the parties and imposing upon them a contract which they never intended to make. That the original written agreement was entire is clear from its terms. It provided that no part of the price fixed was to be paid until the entire sixty shares should be delivered and transferred, or be ready for transfer. The alleged modification of June 12th did not purport to make the contract severable. The testimony of Beeson and Brown, as stated in the main opinion, is that Beeson declared to Wright that he wanted to settle up in full and close the transaction for the sixty shares of stock. If the oral agreement *Page 141